Within the expansive and complex field of healthcare our attorneys concentrate on such critical laws as Medicare and Medicaid (or Medi-Cal in California) Laws, FCA’s its Anti-Retaliation Provision 3730(h), Patient Protection and Affordable Care Act (and its amendments to the FCA), Occupational Safety and Health Administration (“OSHA”) (as enforced by the OSHA Whistleblower Protection Program), and the Whistleblower Protection Act (“WPA”).
One of the most common whistleblower areas that our client’s report is false billing to the government. This is in direct conflict with the FCA and many of the government’s healthcare laws such as Medicare and Medicaid. Another healthcare law that is frequently violated by healthcare employers is OSHA. This federal (and state law counterparts) law is in place to ensure workplace safety. If a workplace is unsafe or unhealthy, the employer is in violation. Those same laws prohibit employers from retaliating against you if you report your employer’s practices as threatening public health and safety.
In addition, our attorneys routinely guide those who contact our office about the health care laws’ protection of healthcare whistleblowers. For example, in California, there are laws that specifically prohibit employers from retaliating against patients, physicians, nurses and other medical staff whistleblowers that report violations to the government or its agencies based on patient-related claims within healthcare facilities. (Health and Safety Code 1278.5.) Also, the threat of retaliation is considered discriminatory treatment.
Other examples of retaliation that our attorneys have seen include unfair negative performance reviews or disciplinary action, denial of a promotion/raise, increases in workload or tougher assignments, or even termination. For example, a recent case involved a psychiatric nurse who alleged retaliation after she reported the facility’s violation of the FCA. In this case, the nurse was awarded $1,000,000 in back pay. (U.S. & Cal. Ex Rel. Macias v. Pacific Health Corp. (2016).)
In another case, a surgical oncologist received $1,750,000 for retaliation and defamation after she was retaliated against for reporting substandard practice by Kaiser and its affiliated medical group in violations of the FCA. Kaiser tried to persuade the physician not to complain by saying that she will never make it to a medical group partner level if she does not “get along” with those in the clinical practice. The court perceived this as retaliation for the physician’s reporting. (Wascher v. Southern California Permanente Group, Kaiser Foundation Health Plan, Inc. and Kaiser Foundation Hospitals (2015).)
Retaliation arises when:
(i) an employee engaged in protected activity,
(ii) the employee was subjected to adverse action by the company as a result of that protected activity, and (iii) there is a causal link between the protected activity and adverse action. (McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973).)
If the judge’s verdict finds that the company is in violation of any anti-retaliation provision, the employee may be awarded reinstatement (if requested), lost wage reimbursement, attorneys’ legal costs, and any other remedy deemed warranted by the court. (Labor Code 1278.5(g).)
There is also a timing component to the retaliation that the court considers. For example, if any discriminatory action was taken against an employee, member of the medical staff, or any other healthcare worker by the facility, within 120 days of the filing of the complaint against the facility, the court may view that as a presumption that the facility committed retaliation.
Federal and State Law Anti-Retaliation Protections
Our practice encourages patients, healthcare workers, and the public to report the unlawful activity as well as any retaliation. Frequently, our attorneys guide our whistleblower clients on available protections.
Anti-retaliation protections are available under Title VII of the 1964 Civil Rights Act (Title VII), the Americans with Disabilities Act of 1990 (ADA), the Age Discrimination in Employment Act of 1967 (ADEA) and the False Claims Act (FCA). Title VII, the ADA, and the ADEA prohibit discrimination, and retaliation, by employers, employment agencies, and labor organizations against employees, applicants, and other individuals who opposed an unlawful employment practice or made a charge or testified, assisted, or participated in an investigation, proceeding, or hearing under one of these statutes. The FCA is the government’s way of promoting private citizens’ reporting of fraud, waste, and abuse of government programs. Employers, contractors, and even competitors should be encouraged to report especially since they are now protected under many anti-retaliation provisions.
 42 U.S.C. § 2000e
 42 U.S.C. § 12101
 29 U.S.C. § 621 to 29 U.S.C. § 634
 Ibid. 3-5
 31 U.S.C. § 3730(h)(1)